27 Who's Black, Who's White, and Who Cares
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27 Who's Black, Who's White, and Who Cares LUTHER WRIGHT, JR. Strict racial classification rules were at the very core of maintaining the institution of slavery and the system of white dominance. One problem with the existence of indentured servants and slaves in a free society was the ease with which slaves or servants could escape if they were not distinguishable from free citizens. By linking slavery to race, slave escape became much more difficult, particularly once all blacks were presumed to be slaves. Suddenly, racial classification became of critical importance in American society -it could be the difference between freedom and slavery and later, the difference between privilege and disenfranchisement. As more people began to claim the benefits of whiteness, the racial classifications became more strict. Analysis of this period in American history leads to the conclusion that the need for the adoption of rules defining race grew out of two phenomena: (1) the decision to deny blacks and Indians the same treatment as whites under the law; and (2) the birth of children who had only one white parent or who had ancestors who were not white. The presence of both of these factors in American society created the significance of racial classifications '! Early Statutory Attempts to Define Race Virginia was the first state in the Union to offer a statutory definition of race.2 However, the first statute, written in 1662, only purported to determine the legal status of children born to negro women by Englishmen. The Virginia rule declared that the status of a child's mother determined the status of the child, breaking away from the English rule of determining inheritance status from the paternal line, and resolving the status of most mixed race children by declaring them black, like their mothers.3 Because the early Virginia statute would have allowed the child of a black man (even if a slave) and a white or Indian woman to assume the free status of its mother, it is not surprising that such children and their parents were banished from the colony. Later statutory definitions of race embraced different criteria. Early statutes in Virginia and Arkansas used a physical appearance approach, defining negroes as those who had '1 a visible and distinct admixture of African blood." Later, other states defining race would adopt one-fourth, one-sixteenth, and one-thirty-second rules which declared that people 48 VAND. L. REV. 513 (1995). Originally published in the Vanderbilt Law Review. Reprinted by permission. Copyrighted Material Who's Black, Who's White, and Who Cares 165 with these fractional quantities of black ancestry were black under the law. The majority of states classified people who were at least one-eighth black as negro. Formula-based definitions of race, known as "hypodescent rules,"4 were the law of the land for many years and are still relied upon in some instances today. As the likelihood that more biracial people could be classified as white under existing laws increased, the laws became more restrictive , often progressing from one-fourth to one-eighth to one-sixteenth to one-thirtysecond , and finally culminating in the one-drop rule. By 1910, almost all southern states had adopted the "one-drop rule."s Under this rule, individuals with any African or black blood in their veins were black under the law. Although some individuals had as much as ninety-three percent or more white ancestry , they would be considered black under the laws of many states. This illustrates the early statutory favoritism for white racial purity and a belief that at some point in history there were pure white, black, and Indian races. Individuals were often considered tainted with black or Indian blood at a remote generational level, denying them the right to be classified white. Early statutes permitted courts to delve deep into an individual's genealogy to show that a great-great-great-grandparent, or an even more remote ancestor, was black. The primary flaw with the more restrictive racial definitions was their enforceability. To the extent that racial perceptions turned on appearance, it was highly unlikely that individuals with "one drop" of African blood would be readily distinguishable from so-called pure white persons. Early Attempts by Courts to Interpret Race Statutes The Slavery Era One of the most often cited early cases on the issue of racial definition is Hudgins v. Wrights.6 In Hudgins, three generations of slave women sued for their freedom arguing that they were the...


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